Legal Transplants, Organ Transplants: the Japanese Experience
| DOI | 10.1177/096466399400300105 |
| Published date | 01 March 1994 |
| Date | 01 March 1994 |
| Author | Eric A. Feldman |
| Subject Matter | Articles |
71
LEGAL TRANSPLANTS,
ORGAN
TRANSPLANTS: THE
JAPANESE
EXPERIENCE
ERIC
A.
FELDMAN
University of California,
Berkeley,
USA
A
successful
legal
transplant - like
that
of
a
human
organ -
will
grow
in
its
new
body,
and
become
part
of
that
body
just
as
the
rule
or
institution
would
have
continued
to
develop
in
its
parent
system.
Subsequent
development
in
the
host
system
should
not
be
confused
with
rejection.
(Alan
Watson,1974: 27)
i
- -
---
-------
------ ,
INTRODUCTION
T
‘
4
OME
TO
A
highly
trained
medical
profession,
much
of
the
world’s
most
advanced
technology,
and
an
effective
policymaking
process,
Japan
could
easily
be
preeminent
in
the
field
of
organ
transplantation
surgery.
Yet,
since
heart
transplants
became
medically
feasible
over
two
decades
ago,
Japanese
surgeons,
even
those
trained
in
top
American
hospitals,
have
been
idle.
Their
inactivity
is
due
to
the
lack
of
agreement
in
Japan
about
recognizing
brain
death
as
death
of
the
person.’
A
heart,
liver
or
pancreas
taken
from
a
body
declared
dead
in
the
traditional
sense -
termination
of
pulse,
breath
and
reflexes -
is
’stale’
and
untransplantable.
The
same
organs
from
a
donor
declared
brain
dead
but
maintained
by
a
respirator
are
’fresh’
and
reusable.
Without
brain-dead
donors,
therefore,
otherwise
transplantable
organs
are
unavailable.
As
a
result,
there
are
no
heart
or
pancreas
transplants
in
Japan.
Partial
liver
transplants
from
live
donors,
a
relatively
experimental
technique,
are
done
in
SOCIAL
&
LEGAL
STUDIES
(SAGE,
London,
Thousand
Oaks
and
New
Delhi),
Vol.
3
(1994),
71-91
72
limited
numbers,
as
are
kidney
transplants;
kidneys
can
be
taken
from
donors
declared
dead
based
on
traditional
criteria.
Japan
is
alone
among
industrialized
nations
in
its
refusal
to
accept
a
brain
death
standard.
As
in
Japan,
other
countries
that
have
dealt
with
the
brain
death
issue
have
faced
dilemmas
about
the
meaning
of
life
as
well
as
about
deeply
held
religious,
personal
and
cultural
beliefs.
But
in
the
USA,
Western
Europe,
Australia,
South
America,
Thailand
and
India,
for
example,
these
questions
have
been
at
least
tentatively
resolved.
The
cessation
of
brain
activity
has
been
accepted
as
death,
despite
differences
of
opinion
about
whether
death of
the
whole
brain
or
the
brain
stem
is
required,
and
whether
brain
death
criteria
should
be
legislated
or
determined
by
medical
practice.
Why
is
it
that
brain
death
remains
unresolved
in
Japan?
An
analysis
of
the
extensive
media
coverage
and
reports
issued
by
professional
and
political
groups
suggests
three
general
explanations.
First
is
the
legacy
of
Japan’s
only
heart
transplant,
the
1968
Wada
case,
and
the
way
in
which
it
has
become
a
symbol
of
public
mistrust
of
the
medical
profession.
Second
is
what
can
roughly
be
described
as
Japanese
culture,
a
catch-all
phrase
to
explain
the
tension
between
traditional
Japanese
views
of
death
and
the
body
and
the
mechanistic
orientation
of
high-technology
medicine.
Third
is
the
need
for,
but
current
lack
of,
broad
public
consensus
in
Japan
before
a
policy
can
be
adopted.
Each
of
these
explanations
has
some
validity;
all
three
share
a
common
element.
They
each
incorporate
arguments
that
rely
to
some
extent
on
the
assertion
of
rights.
Whether
it
is
the
rights
of
organ
donors
and
recipients,
the
rights
of
families
to
control
the
treatment
of
their
members,
or
the
rights
of
the
public
at
large
to
have
a
voice
in
the
controversy,
the
language
of
rights
is
pervasive.
In
the
context
of
a
society
that
allegedly
has
no
rights
tradition
and
little
understanding
of
or
interest
in
rights,
the
importance
of
rights
in
the
brain
death
debate
is
significant.
The
word
’right(s)’
appears
frequently
in
this
article.
While
difficult
to
define
precisely,
a
useful
definition
is
provided
by
Gregory
Vlastos
in
his
seminal
essay
’Justice
and
Equality’
(1984).
Vlastos
relies
on
the
Oxford
English
Dictionary
definition
of
’right’
as
a
’justified
claim’,
and
states
that
z
[T]o
say
that
a
right
is
a
justified
claim
is
to
say
that
it
is
something
which
could
be
claimed
with
justification,
i.e.
a
claim
which
others
have
the
obligation
to
grant
if
(but
not,
only
if)
it
is
asserted.
(Vlastos,
1984: 47)
This
definition
suggests
both
the
legal
and
moral
basis
of
rights.
It
implies
that
justified
claims,
or
rights,
are
not
absolute,
but
allow
for
exceptions
and
limitations,
and
that
the
obligations
to
grant
a
right
may
also
be
flexible,
depending
on
the
claim
and
the
justification
on
which
it
is
asserted.
This
article
assumes
that
people
mean
what
they
say;
that
when
they
claim
a
’right’
(kenri or jinken)
they
do
so
because
they
think
a
justified
claim
has
been
denied
and
they
may
be
able
to
gain
an
advantage
by
saying
so.
Those
asserting
rights
with
regard
to
brain
death
in
Japan
are
by
and
large
not
philosophers
or
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